Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
GRAND RAPIDS, MI – A judge said a Grand Rapids police officer acted lawfully when he stopped and briefly detained a man openly carrying a holstered firearm.
Officer William Moe confronted Johann Deffert after a 911 caller reported a man walking around with a holstered gun. Once he determined Deffert wasn't a threat or felon, he let Deffert go.
Deffert filed a federal lawsuit alleging constitutional violations.
"The court determines that under the totality of the circumstances, Officer Moe had reasonable suspicion to stop and only briefly detain Plaintiff," U.S. District Judge Janet Neff wrote in a 27-page decision granting the city's request for summary judgment.
The lawsuit was also dismissed against Officer Timothy Johnson, who was sued but played no active role in the incident.
Deffert contended he was falsely imprisoned March 3, 2013, while he walked near a church on Michigan Street NE near Lakeside Drive. It was a Sunday morning. An alarmed motorist called 911.
Deffert wore camouflage pants with an FNP-45 Tactical pistol in a leg holster. It had a rail-mounted light with a laser sight attached.
The judge wrote: "... Officer Moe did not randomly stop Plaintiff. Rather, Plaintiff's appearance and behavior, which included singing 'Hakuna Matata' (from 'The Lion King' movie) loudly enough to be heard from a police cruiser, was sufficiently alarming to a resident to call 911. Officer Moe, an officer who spent more than eleven years assigned to the neighborhood where Plaintiff was walking, did not recognize Plaintiff and attested that he thought Plaintiff 'may have had mental issues and was about to commit a violent crime.'"
The judge said Moe was justified in following up on the 911 call and acting quickly to determine if Deffert posed a threat to himself or others in the residential area where the confrontation took place.
She said that a previous ruling held that to "prevent 'the recurrent tragedies triggered by gun violence in public spaces ... police are properly given sufficient freedom of action to investigate circumstances that reasonably suggest an immediate risk to officer or public safety.'"
She said that given the risk to the officer and others it was "prudent and objectively reasonable" to disarm Deffert while investigating the incident. She said that Deffert was detained for 13 minutes while police conducted a background check.
The judge also ruled that Moe had qualified immunity, which protects officers when they act legally while performing their jobs.
She rejected Deffert's argument that the temporary police seizure of his firearm violated his Second Amendment right to keep and bear arms. Deffert's attorney argued that the "core" of the Second Amendment is to carry a firearm "to be able to defend oneself."
The judge sided with the City Attorney's Office, which said that "the right (to bear arms is) not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Deffert's attorney, Steven Dulan, also argued that his client's open carry of a firearm was symbolic speech and protected by the First Amendment. He was trying to raise awareness about the legality of openly carried firearms.
The judge took a dim view.
"Even assuming arguendo that Plaintiff's intent after eating breakfast on March 3, 2013, was to carry his FNP-45 Tactical pistol with a TLR-2 rail mounted tactical light and laser sight in his leg holster to increase awareness on the topic of gun control, the Court agrees with defendants that the record nonetheless does not support a great likelihood that the message would be understood by those who viewed Plaintiff," Neff wrote.
"Plaintiff concedes that he was neither chanting nor reciting slogans concerning the right to bear arms or open carry, nor was he carrying any banner, sign, flag or poster advocating the right to bear arms or open carry. ... Neither Officer Moe nor the person who called 911 apprehended Plaintiff's intended message.
"The caller was merely alarmed. And Officer Moe, who attested that 'Deffert's behavior was not consistent with my experience with open carry advocates,' similarly opined that Plaintiff's behavior was instead 'more consistent with tactical preparedness for unlawful purposes.'"